The recent Review Commission case of Sec’y of Labor v. Lake Erie Constr. Co., OSHRC, No. 11-0146 still leaves Lake Erie Construction Company waiting for a final decision on the merits. However, the Review Commission case is already a landmark decision because it overrules a 34 year-old precedent established in the case of Gerard Leone & Sons, Inc., 9 OSHC 1819 (OSHRC 1981.) (“Gerard Leone”). Gerard Leone involved the application of the construction motor vehicles standard, § 1926.601(a), which regulates such things as brake lights, audible warning devices and seat belts on motor vehicles used in construction. In Gerard Leone the Commission held in a 2-1 decision that § 1926.601(a), “limits the standard’s applicability by vehicle and not by location.” Id. at 1820. In short, that decision held that the requirements for motor vehicles applied if the vehicle at issue is the type that operates off-road regardless of whether the location was on-highway but closed to the public.

In the Lake Erie case, an employee was electrocuted while working on a project which involved removing guardrail posts along a highway that was closed to traffic at the time of the accident. The guardrail posts were removed using a “pounder truck,” part of which either contacted or came close to contacting power lines, causing electricity to arc or travel to an “Attachment” and chain, thus electrocuting the employee who was holding the chain. Lake Erie received a citation for $70,000 for a willful violation of 29 C.F.R. § 1926.600(a)(3).

The question at issue was whether or not the “pounder truck” was covered under Subpart O, 29 C.F.R. § 1926.601(a) which states:

Coverage. Motor vehicles as covered by this part are those vehicles that operate within an off-highway jobsite, not open to public traffic. The requirements of this section do not apply to equipment for which rules are prescribed in 1926.602.

(emphasis added.)

The Secretary argued that based on the precedent set in Gerard Leone, the pounder truck was the type of vehicle which operated off-road and therefore was a covered vehicle. Lake Erie’s counsel argued that since the accident occurred while the pounder truck was on a highway, it was not covered under § 29 C.F.R. 1926.601(a) and, therefore, the citation was invalid.

In 2012, Administrative Law Judge Sharon D. Calhoun affirmed the citation but reduced the penalty to $35,000. The judge decided, based on the binding precedent set in Gerard Leone, that the pounder truck was a covered vehicle. However, she added that she felt the decision in Gerard Leone was wrong and in its petition for discretionary review, Lake Erie counsel noted that similar doubts have been raised in other cases.

In reaching its decision, the Commission decided that “(s)pecifically, reading § 1926.601(a) as addressing the type of vehicle operated rather than the location of its operation is contrary to the provision’s language – ‘vehicles that operate within an off-highway jobsite, not open to public traffic.'” Other cases over the years have argued that the language of this provision is plain and deliberate – there is no reference to the “type” of vehicle, nor is there any discussion of vehicles that can operate within an off-highway jobsite. The provision simply refers to “vehicles that operate within an off-highway jobsite, not open to public traffic.”

The Commission’s decision on September 24, 2015 held “[W]e overrule Gerard Leone’s holding that the language of
§ 1926.601(a) applies to motor vehicles based on their particular type. Relying on the plain language of the provision, we now conclude that it covers motor vehicles based on the location of their operation, i.e. ‘within an off-highway jobsite, not open to public traffic.'”

The case has now been remanded to Judge Calhoun to determine “whether, at the time of the alleged violation, the pounder truck was a ‘[m]otor vehicle [] … that [was] operat[ing] within an off-highway jobsite, not open to public traffic.'”

You can read the full decision here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.